July 10, 2019 Written Statement Marilyn J. Mosby Baltimore ...

Marijuana Laws In America: Racial Justice and The Need for Reform July 10, 2019

Written Statement Marilyn J. Mosby Baltimore City State's Attorney Baltimore City State's Attorney Office

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I. INTRODUCTION

Chairwoman Karen Bass, Vice Chair Val Butler Demings, Ranking Member John Ratcliff and members of the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, I am Marilyn Mosby, the State's Attorney for Baltimore City. It is an honor to appear before the Subcommittee today to discuss the need for federal decriminalization of marijuana, the need for criminal justice reform specific to marijuana enforcement, the necessity of second chances for those who have been involved in the justice system and the necessity for equitable economic participation and reinvestment in communities that have been disproportionately and most adversely affected by the discriminatory enforcement and criminalization of these laws. As the Chief prosecutor of Baltimore city, it is my sworn ethical obligation, as an administrator of justice, to not only seek justice and safety in my community, but to seek to reform and improve the fair administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to the prosecutor's attention, he or she should take action to remedy that injustice and create new practices that mitigate further harm.1 That is the essence of the pursuit of justice and a proactive vision in my role as an elected prosecutor that fortifies community trust integral to the functioning of our justice system.2 It is this vision that drove my recent implementation of a new marijuana policy, as well as my ongoing efforts to look at the integrity of past convictions and other areas where our justice system has fallen short.3

There's a growing number of prosecutors nationwide who are examining how best to implement criminal justice reform from within.4 As part of this reform, many elected prosecutors' are reconsidering marijuana prosecution policies for several reasons including the need to address racially disproportionate punitive approaches to drug use, a desire to achieve more sensible use of scarce resources and the recognition that criminalizing drug use has not led to safer or healthier communities. This thinking is based on increasing evidence that "higher rates of drug imprisonment do not translate into lower rates of drug use, arrests, or overdose deaths."5 Instead,

1 American Bar Association, fourth edition of the criminal justice standards for the prosecution function, part i. general standards, Standard 3-1.1. 2 Fair and Just Prosecution. "21 Principles for the 21st Century Prosecutor", (2019), and Bazelon and Krinsky, "There's a New Wave of Prosecutors. And They Mean Justice", New York Times, (2018) . 3 National Public Radio, "Baltimore State's Attorney Will No Longer Prosecute Marijuana Possession", (2019), . 4New York Times, "A Growing Chorus of Big City Prosecutors Say No to Marijuana Convictions", (2019), . 5 The Pew Charitable Trusts, "More Imprisonment Does Not Reduce State Drug Problems", (2018), and Drug Policy Alliance, "The Drug War, Mass Incarceration and Race", (2018), .

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mass incarceration for drug offenses has devastating consequences for those incarcerated and their families and communities. Excessive punishment of drug crimes perpetuates the cycles of generational trauma and socioeconomic marginalization that, in turn, intensify the social determinants of drug use.6

Based on these and other concerns, on January 29th of this year, I announced that I was utilizing my discretion as a prosecutor to stop devoting resources to the prosecution of marijuana possession charges, regardless of weight and criminal history. I mandated the referral of every first-time felony drug offender to my offices' job training diversion program.7 My office moved to vacate the convictions of almost 5,000 marijuana possession convictions dating back to 2011. In tandem with the announcement of my policy, my office also released a detailed white paper entitled, "Reforming a Broken System: Rethinking Marijuana Prosecution in the city of Baltimore," in which we enumerated the lack of public safety value in the prosecution of marijuana possession; the counterproductive nature of utilizing limited law enforcement resources for a crime with no public safety value; and the racially disparate enforcement of marijuana laws resulting in adverse collateral consequences for poor Black and Brown communities in Baltimore.

I am here today because there is no better illustration of this country's failed "War on Drugs" than the city of Baltimore, MD. A mere 45 minutes away from our nation's capital, Baltimore currently leads the nation in per capita homicides, rising opioid deaths and is one of the most impoverished cities in the nation. Once deemed the "Heroin capital of the World," for decades our government has criminalized substance use as opposed to treating it as the public health crisis we now recognize it to be. In fact, in 2015, the United States spent $3.96 billion on the enforcement and imprisonment of marijuana users and an additional $18.47 billion on all other substance users.8 It is undisputed that the long-standing, well-established discriminatory enforcement of drug laws has disproportionately affected poor Black and Brown communities nationally and has led to widespread collateral consequences that not only severely and adversely impact an individuals' ability to find employment, secure housing and obtain student loans, but these barriers have led to the breakdown of families and the social and economic decimation of communities.9

National data has consistently shown that Black people are almost four times more likely to be arrested for marijuana possession in the United States than White people, despite individuals of

6 The Pew Charitable Trusts, "Collateral Costs: Incarceration's Effect on Economic Mobility", (2010), . 7 Baltimore City State's Attorneys Office, Full Term Report 2015-2018, (2019), . 8 Drug War Facts, "Economics of Drug Policy and The Drug War", . 9 Shawn M. Kneipp and Amanda Sheely, "The effects of collateral consequences of criminal involvement on employment, use of Temporary Assistance for Needy Families, and health", (2018), .

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both races using marijuana at the same rate.10 In the city of Baltimore, prior to the decriminalization of 10 grams or less of marijuana, Black people were six times more likely to be arrested for the possession of marijuana.11 While some had hoped that a movement toward decriminalization would offer a respite to communities of color, flagrant disparities continue to exist in Baltimore city. Since the decriminalization of possession of less than ten grams of marijuana to a civil infraction, Black people have continued to bear the disproportionate weight of enforcement. In 2017, 95% of the citations issued by the Baltimore Police Department were issued to Black people and shockingly, 42% of the citations issued city-wide were issued in a singled district out of nine that cover the city, the Western District. Unsurprisingly, 95% of the residents in this District are Black and disproportionately impoverished.12

For far too long, we all have stood by and allowed discriminatory policies and enforcement to destroy families and communities. We have allowed these practices to continue even as we have seen them strip communities of their health, prosperity, and hope. I am here today because I refuse to accept the status quo any longer. I refuse to be complicit in the destruction of our Black and Brown communities.

I come before you today to share the impact of the failed "War on Drugs" that has ravaged my city and far too many other parts of our nation, which served as the impetus and support for the findings and proposals outlined in my white paper. As a prosecutor committed to equitable outcomes and the pursuit of "justice over convictions" in every instance, I welcome any discussions today and thank the members of the subcommittee for your willingness to continue to consider this critical issue.

II. PAST AND PRESENT CONSEQUENCES: WAR ON DRUGS

President Richard Nixon officially declared a "War on Drugs" in 1971. In the 1980s, President Ronald Reagan reinforced and expanded many of Nixon's "War on Drugs" policies. In 1984, First Lady Nancy Reagan later launched the "Just Say No" campaign with an effort to educate children on the dangers of drug use. As years passed, the "War on Drugs" continued and so did the policies designed to punish substance use. In 1994, President Bill Clinton solidified the United States' (U.S.) "Tough On Crime" and "War on Drugs" by way of his Violent Crime Control and Law Enforcement Act, which imposed three-strikes mandatory life sentencing,

10American Civil Liberties Union, "The War on Marijuana in Black and White," (June 2013), at 21. 11 Ethan McLeod, Andy Friedman and Brandon Soderberg, Baltimore Fishbowl, "Structural Racism and Cannabis: Black Baltimoreans still disproportionately arrested for weed after decriminalization", (2018), . 12 Citation records obtained by Baltimore Police Department. Neighborhood ethnicity data found at: Statistical Atlas, "Race and Ethnicity in Baltimore City", (2018), .

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money to hire a 100,000 additional police officers, and funding for prisons, among many other policies.13

As a result of decades of escalating penalties and punitive approaches to substance use, from 1980 to 1997, the number of people behind bars for nonviolent drug offenses increased from 50,000 to over 400,000.14 And between 1981 and 2006, the number of drug arrests in the United States quadrupled to nearly two million per year, disproportionately affecting people and communities of color.15 Forty-six years since the official declaration of Nixon's drug war, as of 2017, 1.5 million arrests in the U.S. were due to drug law violations, where 85.4% of those arrested were related to drug possession.16 While the U.S. continues to lead the world with the highest rates of imprisonment for drug law violations, it is patently clear that drug-related arrests have had little impact on substance use, while having extremely deleterious impacts on communities of color. Although data is clear that the rates of drug use and even sales are comparable across racial and ethnic lines, Black and Latinx people are much more likely to be arrested for drug use and sales than White people. In fact, approximately 80% of people in federal prison and almost 60% of people in state prison for drug offenses are Black or Latinx.17

III. PRECURSORS TO POLICY DEVELOPMENT

a. No Demonstrable Public Safety Considerations

The test of time has provided us with ample data that there is little public safety value related to the current enforcement of marijuana laws. The data indicates that the disparate enforcement of marijuana laws and overall drug laws not only intensifies already existing racial disparities in the criminal justice system, but exacerbates distrust among communities and law enforcement without increasing overall public safety.

As further evidence that marijuana enforcement, in particular, is not creating a significant public safety benefit, one can look to states that have legalized recreational use of marijuana where no demonstrable increase in crime since legalization has been observed. The Manhattan District Attorney's Office released in 2018, A Report on the Legalization of Recreational Marijuana in the United States, and found no evidence of an increase in crime related to the legalization of

13 Congressional Research Service, "Crime Control: Federal Initiatives IP310C, found at . 14 Drug Policy Alliance, "Drug Policy Statistics", 15 Katherine Beckett, "The Uses and Abuses of Police Discretion: Toward Harm Reduction Policing", 10 Harv. L. & Pol'y Rev. 77, 81 (2016) and Brian Stauffer, "Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States, Human Rights Watch" (2016), . 16 Drug Policy Alliance, "Drug Policy Statistics", - Cases include those with other charges where the defendant pleas to possession. 17 Drug Policy Alliance, "Race and the Drug War", .

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